Appellate panel denies new trial in Halbach homicide

Jan. 30, 2013

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Written by

Jim Collar

Post-Crescent Media

A state appeals court has rejected Brendan Dassey's request for a new trial on charges that he helped kill a young woman in 2005 in one of Wisconsin's most notorious crimes. / Gannett Wisconsin Media, file

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Attorneys for Brendan Dassey vowed to seek a Wisconsin Supreme Court review on Wednesday after a three-judge appellate panel rejected his bid for a new trial in the 2005 murder of Teresa Halbach.

Wisconsin’s District 2 Court of Appeals, based in Waukesha, issued an 11-page decision that upheld Dassey’s 2007 Manitowoc County convictions for first-degree intentional homicide, sexual assault and mutilation of a corpse in Halbach’s Oct. 31, 2005, death.

Attorneys for Dassey, who was 16 at the time of the homicide, say his lawyers were deficient. They also argued the teen was coerced into confessing to police.

Dassey attorney Laura Nirider, a staff lawyer with Northwestern University’s Center for Wrongful Convictions of Youth, said she was disappointed by the decision and thinks the public shouldn’t have confidence in the process that resulted in Dassey’s convictions.

“It’s a 16-year-old, mentally limited boy who doesn’t know what to say until the police tell him what happened,” Nirider told Post-Crescent Media on Wednesday.

Halbach, a 25-year-old freelance photographer from Calumet County, was last seen at Avery Auto Salvage, which is run by Dassey’s relatives. Dassey’s uncle, Steven Avery, now 50, was convicted of homicide in the case at a separate trial.

The appeals court said Wednesday that the reliability of Dassey’s confession was an issue for the jury to decide. They rejected the notion of police using coercive tactics to obtain it. Investigators, the court said, properly read Dassey his Miranda rights, which gave him the options among others of remaining silent or being questioned with an attorney present. Dassey wasn’t restrained during questioning. He was offered food, drinks and bathroom breaks and didn’t appear intimidated at any point during questioning. Police statements to Dassey indicating they were “in (his) corner” and would “go to bat” for the teen aren’t sufficient cause for a reversal, the court found.

“As long as investigators’ statements merely encourage honesty and do not promise leniency, telling a defendant that cooperating would be to his or her benefit is not coercive conduct,” the decision says.

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Dassey’s legal representation also drew criticism from his team of appeal lawyers.

They argued his trial lawyers, Mark Fremgen and Ray Edelstein, failed to sufficiently attack the reliability of Dassey’s confession. They also say the lawyers improperly failed to retain an expert on interrogation tactics.

The appeals court determined Dassey’s attorneys made reasonable decisions based on their strategy.

Dassey’s appeal lawyers also argued Dassey’s first lawyer, Len Kachinsky, helped the prosecution more so than his client. Kachinsky spoke to the media about the potential for a plea deal, shared information with prosecutors gathered by his own investigator and allowed a police interview that resulted in a telephone confession to Dassey’s mother, records say.

The appeals court said Dassey failed to show Kachinsky hurt his case.

Kachinsky told Post-Crescent Media on Wednesday that the arguments based on his performance were overblown and said he was taken off the case over a difference in opinion over strategy.

“Ultimately, they chose to go a different course,” Kachinsky said. “It happens to attorneys all of the time.”

Kachinsky said he was relieved by the court’s findings. “I didn’t think the accusations were valid,” he said.

The appeals court also declined to reverse the case in the interest of justice, “so that Dassey may take a different approach in a new trial when the defense that was presented was competent, if unsuccessful,” the decision says.

Nirider said she’s hopeful Dassey will eventually receive a second trial. The state Supreme Court, however, isn’t obligated to take on cases following appeals court decisions.

Dassey, now 23, is a serving a life prison sentence. He will not become eligible to apply for extended supervision until 2048.